Clement v. Wilson

135 F. 749, 68 C.C.A. 387, 1905 U.S. App. LEXIS 4374

• Court: Court of Appeals for the Second Circuit
• Decided: January 18, 1905
• Docket: No. 94
• Status: Published

Opinion

WALLACE, Circuit Judge.

This is a writ of error by the defendant in the court below brought to review an order setting aside a verdict in favor of the defendant and directing a new trial. The verdict was set aside because the court was of the opinion that it had not been rendered by an impartial jury. There are two reasons why this writ of error cannot be entertained: (1) It has long been the established law in the courts of the United States that to grant or refuse a new trial rests in the sound discretion of the court to-which the motion is addressed, and the result cannot be made the subject of a review upon a writ of error. Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085; Nudd v. Burrows, 91 U. S. 426, 23 L. Ed. 286; Railroad Co. v. Horst, 93 U. S. 291; 23 L. Ed. 898. (2) This court can only review final decisions, and the order of the court below in granting a new'trial has no element of finality. No judgment is final which does not terminate the litigation between parties. Upon this ground a judgment of reversal, granting a new trial, cannot be reviewed. Baker v. White, 92 U. S. 176, 23 L. Ed. 480; Tracy v. Holcombe, 214 How. 426, 16 L. Ed. 742; St. Clair County v. Lovingston, 18 Wall. 628, 21 L. Ed. 813.

The writ of error is dismissed.